| Burrell v City of New York |
| 2008 NY Slip Op 01905 [49 AD3d 482] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Dorian Burrell, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for respondent City of New York.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much an order of the Supreme Court, Queens County (Flug, J.), entered April 23,2007, as granted that branch of the motion of the defendant City of New York which was forsummary judgment dismissing the causes of action alleging violations of General Municipal Law§ 205-e insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thebranch of the motion of the defendant City of New York which was for summary judgmentdismissing the causes of action alleging violations of General Municipal Law § 205-einsofar as asserted against it is denied.
The manner in which a police officer operates his or her vehicle in responding to anemergency call may not form the basis of civil liability to an injured third party unless the officeracted in reckless disregard for the safety of others (see Vehicle and Traffic Law §1104 [e]; Saarinen v Kerr, 84 NY2d 494, 501 [1994]; Rodriguez v Incorporated Vil. of Freeport, 21 AD3d 1024 [2005];Molinari v City of New York, 267 AD2d 436, 436-437 [1999]). The "reckless disregard"standard requires proof that the officer intentionally committed an act of an unreasonablecharacter in disregard of a known or obvious risk that was so great as to make it highly probablethat harm would follow (see Szczerbiak v Pilat, 90 NY2d 553, 557 [1997]; Saarinen vKerr, 84 NY2d at 501; Campbell v City of Elmira, 84 NY2d [*2]505, 510 [1994]).
Here, the defendant City of New York failed to meet its initial burden of establishing, primafacie, that the defendant police officer did not act in reckless disregard for the safety of otherswhen she entered the intersection, where the subject accident occurred. Vehicle and Traffic Law§ 1104 (b) (2) permits an emergency vehicle to "[p]roceed past a steady red signal. . . only after slowing down as may be necessary for safe operation." The City'ssubmissions failed to eliminate questions of fact as to whether the police vehicle had itsemergency siren and flashers on and whether the officer operating the vehicle accelerated, ratherthan slowed down, as she approached the intersection. Moreover, there are issues of fact as towhether the defendant police officer's view of the intersection was obstructed by a parked vehicleand/or the inclement weather. Accordingly, the City did not establish its entitlement to summaryjudgment dismissing the causes of action alleging violations of General Municipal Law §205-e insofar as asserted against it (see Campbell v City of Elmira, 84 NY2d at 510-511;Badalamenti v City of New York,30 AD3d 452, 453 [2006]; Lupole v Romano, 307 AD2d 697, 698 [2003]; Lucav Town of Crawford, 294 AD2d 410 [2002]; Baines v City of New York, 269 AD2d309 [2000]; Gordon v County of Nassau, 261 AD2d 359 [1999]; cf. Salzano vKorba, 296 AD2d 393, 394-395 [2002]), and we thus need not consider the sufficiency of theplaintiff's opposition papers. Rivera, J.P., Skelos, Santucci and Leventhal, JJ., concur.